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Trails and tribulations Ownership of abandoned rails is at question in suits
BY RON SYLVESTER
The Wichita Eagle
Jerramy Pankratz has an old railroad track going through his backyard. Now that they want to make trails from the old railroad tracks, Jerramy thinks he should be compensated.
Fernando Salazar/The Wichita Eagle
Jerramy Pankratz has an old railroad track going through his backyard. Now that they want to make trails from the old railroad tracks, Jerramy thinks he should be compensated.
Jerramy Pankratz walks with his four-year-old son Wyatt down an old railroad track thats sits on the back of his property in Andover.Rails to Trails

1,409: Number of recreational trails developed nationwide under the federal Trails Act. There are rail trails in almost every state.

1,206: Number of trails in development, according to the Rails-to-Trails Conservancy.

6 years: Statute of limitations for affected property owners to file claims for reimbursement from the government.

20: Property owners in Kansas who won’t receive reimbursements because of the statute of limitations.

Two Kansas landowners have sued for compensation after the government took old railroad rights of way on their properties — but unless Congress intervenes, only one is likely to get paid.

The aim was to turn the old tracks into recreational trails. But the cases illustrate how federal rails-to-trails programs can lead to decades of legal conflict.

The controversy over rail-trail conversions has been brewing since Congress passed the federal Trails Act 25 years ago. It allowed the U.S. Surface Transportation Board to give unused railroad lines back to states to use as recreational trails. But adjoining landowners began asking why that property wasn’t returned to them.

In Butler County, a young couple has an abandoned railroad track running through their property.

In McPherson County, a 95-year-old cattle farmer lives with a recreational rail trail that splits his property.

Compensation — if any is granted — could range from getting the use of their land back to being paid for the time the government has held rights to the land.

“On literally both sides of Wichita you have both different hypothetical situations under the same law,” said Thor Hearne, a St. Louis lawyer who has made a career out of handling such cases.

Since 1983, the Trails Act has helped convert more than 1,400 dormant railroad tracks to trails for hiking, biking, walking and horseback riding throughout Kansas and the rest of the country.

Two Kansas cases

The rail-trail cases disproportionately affect the Midwest, where farmers and ranchers own large tracts of land.

The Butler County couple, Jerramy Pankratz, 31, and his wife, Erin, 29, own a home just outside the Andover city limits with an abandoned rail track in the back of their 11 acres.

They got word this month that a federal judge will consider whether the government should pay them for the nearly three years it has held the rail easement, while the cities of Andover and Augusta continue to debate if it should be converted into a trail.

The McPherson County cattleman, Royer Barclay, hasn’t been paid for a former railway converted to a trail that cuts a swath across his 300-acre farm south of Lindsborg.

A different court ruled two years ago that he’s not owed money because he didn’t file his claim on time.

The rail-trail cases go the U.S. Federal Court of Claims, a small arm of the federal court system in Washington, D.C., that handles cases against the government worth more than $10,000.

A federal judge ruled this month that she will hear arguments that could lead to the government paying for the time it ties up the Pankratzes’ land, whether or not a trail is built.

“We think that was a big win for us, because we’re getting a hearing on an issue after a long delay,” Hearne said.

He said the Pankratzes’ lawsuit could help settle cases across the country and make it easier for landowners to get paid.

But while they wait for a decision, no one has been able to use the land.

“It’s been kind of frustrating, because if you have a four-wheeler or something, and you leave it parked there, you can get a ticket for it,” Jerramy Pankratz said. “But technically it’s our land.”

The conversion to a trail also may affect how much land the property owners could lose. Rails span about 12 feet, but trails can take upmuch more, according to court records.

Rail line history

There’s a reason it has taken the court decades to sort this out. The Constitution’s Fifth Amendment protects property owners from the government seizing their land, but it’s not that simple.

The U.S. Supreme Court ruled in 1990 that landowners affected by the Trails Act should receive “just compensation.” Property might fall in this category when tracks change from active railways to potential trails.

Sorting out the history of old railroad lines isn’t easy. The U.S. railways have held much of the land since the late 19th and early 20th centuries, obtaining it in various ways.

“Sometimes they bought deeds from the landowners,” William Shapiro, a civil lawyer from the U.S. Department of Justice, explained in court transcripts. “Sometimes they were given permission to condemn the land… and sometimes they were granted the land by the federal government.”

Under federal law, the government owns abandoned rail lines.

Some landowners have taken issue with that. Getting the land back could increase their property values — sometimes dramatically.

Estimates have not been made on the value of the land involved in either Kansas case. But appraisals elsewhere show a rail-trail can decrease property values. Among the concerns property owners have is that trails cut their property in two and can lead to heavier traffic.

“We had one trail running through suburban St. Louis that came to about $4 million a mile,” Hearne said.

Help from Congress

Royer Barclay and about 100 other landowners across the country won’t get paid because of an earlier ruling.

In a precedent-setting case, a split federal court dismissed a claim in Georgia, saying land wasn’t taken when a trail was built, but rather when the railroad stopped running.

That ruling affected Barclay and others who hadn’t filed their claims until more than six years after railways were abandoned, when they found out trails were being developed.

The court decision led to property owners in Kansas, California and Missouri losing any right to compensation.

Congress is trying to fix that. A pair of bipartisan bills sponsored by senators and representatives from Missouri has been introduced, dubbed the Trails Act Technical Correction Act of 2007.

The bill is being considered by a House subcommittee and a Senate committee.

It would retroactively change the law so Barclay and others would be paid for the use of their land.

“The landowners want this law passed, and it would save money,” Hearne said. “The property owners now have to file a lawsuit, and it costs the taxpayers money. This would make it easier to negotiate trails.”

Last week, Barclay considered the trail on his property.

“It cuts right through it,” he said. “I’ve thought from the very beginning, we should receive something for it.”